Storm blew crate through car window

[CrazeUK]

Hi All.
My partner lives above some new shops.  I believe the land is council owned, as the flats are newly built and are council owned.
The shop has a small yard at the back with a fence adjoining the car park.  There are 7 parking spots directly behind this fence.

 

On Friday, the wind caught up a bit, and blew a brown bread crate that was resting high on a metal trolley and on the fence, through the air up and over fence, and strait through the car window.  Luckily, i have a small camera facing the area, so the damage was caught on camera.

Aside from the smashed window, which she will have to pay £100 excess, her pram and baby seat where in the car which are now both covered in glass and shards, along with the rest of the car.

She spoke to the shop owner, who was excessively dismissive, didn't even want to watch the footage of the video - I think he has something against women generally.  When I called him, he refused to provide his insurance details or even accept responsibility of the damage.  I have previously told him about things being blown over from the fence (usually boxes, and plastic wrappers from stock), which i tend to just throw back over the fence as it litters the area.

 

She has spoken to the insurance company, they will replace the rear windscreen, with an excess payment, but wont consider the pram or baby seat as it wasnt accident related.  She does have legal cover on her insurance.

 

What can she do about this? 

[Ethel Street]

The answer in practice is probably very little.

 

The shopkeeper is not automatically responsible for something that that blows out of his shop premises or legally liable for the damage it causes. She would have to prove that the shopkeeper was negligent in the way he had stored the bread crate and that he should have reasonably foreseen that in windy weather it might blow out and damage cars parked the other side of the fence.  Only then might he be laible for the damage.

 

When the storm was as strong as it was last Friday it would be difficult (but not impossible) to prove the shopkeeper was negligent.

 

She should also bear in mind that even if she did prove he was negligent courts would not order him to pay the cost of replacing the car seat and the pram with new items. They would only order him to pay the second hand value. Car seats in particular have very little second hand value, second hand and charity shops normally won't take them.

 

Have a look and see what it costs to buy the same or similar car seat and pram of the same age and condition as the ones made unusuable by the broken glass. Your partner will need to know that if she wants to start a formal claim against him.

 

It may be so low as to be not worth suing the shopkeeper for, although if she did sue she'd also sue for the £100 windscreen excess.

 

You say the car insurer refused the claim as it wasn't accident related but that doesn't sound right. The car seat and pram have clearly been made unusable - ie, damaged - by an accident, by the crate smashing into the car. It's worth going back to them to argue the rejection. But first check if car seats and contents like a pram are insured under the policy. Not all motor polices cover them.

 

Incidentally, the shopkeeper has no legal duty to tell you who his insurer is. He was entitled to refuse your request for his insurance details. 

 

Is he a small shopkeeper running his own business? If yes then he might decide to settle if your partner sends him a formal of claim because otherwise he might have to shut his shop for the day to attend court. We can advise on the procedure if she wants to do that.

 

Keep the film safe. It will be vital evidence for any claim.

[CrazeUK]

Hey.
Thanks for your quick response.

 

He seems to use plastic crates to hold down waste from the shop (as seen in the pics).

The pram, is the easy thing to replace, however the advice on car seats is always never buy used as you never know if there is accident damage on it.

 

What sort of things would i need to consider to prove he was negligent?

 

My approach opinion would be very different if the fence had blown out, but with this, it is ridiculous that he hasn't held things that will catch air, even when previously warned.  The added crazy thing is, my partner had parked her car there literally 10 mins before, and taken both the kids out of the back who could have been sprayed with the glass.
 

Doc2.docx

[Bazooka Boo]

Have you contacted your LA regarding this store? And reported your concerns to them?

[unclebulgaria67]

Agree with Ethel Street. 

 

Seen much worse damage, where the Car owner never received a penny.

 

What you believe is a moral way of dealing with such matters, is not how it works. 

 

You can threaten a Court claim and also going to local Council about what happened. But if the shopkeeper is not interested, then you will find it difficult to pursue. The shopkeeper could defend on basis that there was no basis of liability due to the severe wind conditions and they had taken what they thought were reasonable steps to secure the crate.

[BankFodder]

I'm going to come in with a different view here.

An occupier of land is, on the face of it, liable for any damage which is caused by anything that they bring onto their land for their own purposes and which they they keep on their land and which escapes from that land and causes harm.
This liability is strict and that means that such tests as foreseeability or negligence/carelessness are not necessary.

The only test is that once the harm is caused, any consequential harm is a direct result of the thing's escape from the land.

Certainly, if foreseeability was necessary here then it seems pretty clear from the fact that this person is weighing down material in these bins with crates that he is doing this as a preventative measure. In other words he considers that there is a distinct possibility that the wind might cause the contents of the bins to blow air onto adjoining land.
Also, if foreseeability was an issue then frankly there had been so much publicity about the forthcoming storms and high winds and so many warnings, that it was probably reckless simply to weigh down (what I take to be) bubble wrap simply with empty plastic crates.

If you want to know more about this then I suggest that you look at the rule in Rylands v Fletcher.

There have been some comments here as to whether the damage that you have suffered is worth the candle of taking trouble to bring a claim. I'm not sure that that is a question that we are being asked here but as the topic has come up, I find it really quite offensive that a business owner who presumably has a business insurance which is set off against tax, refuses to give you his insurance details even though I would say that he is legally obliged to in exactly the same way that a motorist would be required to inform their insurer.
The disbenefit to the business of course is that he might be required to pay an excess – but of course that also would be set off against tax.

On the other hand, you, the victim will not be able to set anything off against tax and you will have to meet any excess expenses out of your own pocket.
Furthermore, according to you this businessman has a complete disregard for the interests of view, his neighbour – and presumably any other neighbours well.
He needs a lesson in manners.

If you wanted to start an action on this then I can imagine that the businessman would very quickly try to give you his insurance details – but knowing insurance companies and how long they take, frankly once you started the action I would suggest that you simply continue with it. I would expect that his insurer will very quickly get involved and would want to settle the matter.
They then might have something to say to their client as to why he didn't mitigate his losses by dealing with the matter responsibly and in a businesslike way.

 

On the basis of what you have told us here I would advise you to send a letter of claim giving them 14 days and then to go ahead and sue for everything – including the excess, increasing premiums that you might have to pay in the future.
Not a Penny less.

 

We will help you all the way of course

[CrazeUK]

3 hours ago, Bazooka Boo said:

Have you contacted your LA regarding this store? And reported your concerns to them?

She is about to call them, will update here with what they say.

[CrazeUK]

49 minutes ago, BankFodder said:

I'm going to come in with a different view here.

An occupier of land is, on the face of it, liable for any damage which is caused by anything that they bring onto their land for their own purposes and which they they keep on their land and which escapes from that land and causes harm.
This liability is strict and that means that such tests as foreseeability or negligence/carelessness are not necessary.

....

 

Thanks, i understand your point, and hope this is how it works out.
Basically, the £300 car seat, and the Pram seat (another £1500) are now unusable because we cant get the fine shards /dust of glass out.

We contacted the legal cover, they said they can try to pursue if I can get the insurance details.  If not, i will definitely take the court action route and see what progresses.

Thank you

[BankFodder]

I think you are wrong to hand it over to your legal cover people .

They aren't interested in investing any enthusiasm in this kind of thing .

I think you need to make it happen yourself and you need to make it happen quickly .

Means that you get two estimates for the replacement items and then you simply send the business a letter of claim and then begin your claim 14 days later .

The guy is obviously unpleasant and has no respect for you.

How long do you want to go with unusable seats ?

You can be certain that your legal cover from will take weeks or months and that is assuming that you can get the insurance details in the first place .

 

 

 

 

 

 

 

 

[Ethel Street]

I'm afraid I disagree that this could be brought as a "strict liability" claim against the shopkeeper using the rule the rule in Rylands v Fletcher.

 

I believe it would have to be a normal negligence claim. It won't be impossible to prove negligence by the shopkeeper although my personal view is it will be difficult given the circumstances of there having been the strongest winds for many years in Storm Eunice. Although in one way that would help you as the shopkeeper had plenty of warning to expect exceptional winds and you can argue that he should have taken extra care to tie down anything that could blow out of his yard. 

 

I dealt with insurance claims professionaly for many years before I retired and I have never seen a 'Rylands' v Fletcher' claim succeed in cases like this.

 

[For the legally minded on here,  the leading case law on this is the House of Lords decision in Transco v Stockport Metropolitan Borough Council [2003]) which said the rule Rylands and Fletcher could ony apply where the use of the land was "extraordinary and unusual" and that what the occupier brought on to the land presented an "exceptionally high risk of danger or mischief if there should be an escape". I cannot see how a case like this could meet those requirements, although I am not a lawyer.]

 

However @CrazeUKdon't get bogged down in legal theories here. Simply by submitting a formal letter of claim the shopkeeper might decide it's easier and cheaper to pay you without ever going to court. Going to court and dealing with all the paperwork will take up a lot of his time and if he's on his own he may not want that. 

 

That said though I think it more likely he will just pass your partner's letter of claim to his insurers and you will be in for a battle with them.

[BankFodder]

Given that the case which apparently considered and refined Rylands and Fletcher was in 2003, I'm even more embarrassed!

You should certainly follow the advice from my site team colleague @Ethel Street who is much more in touch with this area of liability than I am.

Certainly I do see a substantial chance of success if you bought an ordinary claim for negligence – although you would have to show that it was foreseeable that the crates would be blown off and that they would cause damage.

Given all the circumstances – I don't really see this to be much of a problem